Retail Rentals

In re Tyler Self-Storage Unit Permits, 2011 VT 66

By Zak Griefen

What comes to mind when you read the words “retail rental?”  Perhaps you think of a rent-to-own store with a showroom full of HD TVs and living room sets.  Or maybe a shop lined with shelves of empty DVD cases (mainly depicting horrific torture and slavering monsters for your kids’ viewing pleasure) among which you search for a video that will simultaneously appeal to two adults, a grade-schooler and a toddler.  Or maybe that is just me.

 Both of those examples are shops, into which you can walk and browse the displayed merchandise and, should you chose, interact with a salesperson and pay for the privilege of walking away with and using the displayed item for a period of time: retail rental.

But today’s case involves a different scenario.  Here, the customer would pay for the privilege of bringing their own personal belongings to the rental facility and leaving them there: self-storage. 

Applicant Bradford Tyler sought to construct seventy-two self-storage units in the Town of Dorset’s Village Commercial zoning district.  But the ZBA determined that Tyler’s proposed use did not constitute a “retail sales/rentals” use under the zoning bylaws, and denied Tyler’s application.    

The Environmental Division correctly interpreted “retail sales/rentals” to mean “retail sales or retail rentals.”  The virgule (i.e., forward slash) is always read as “or” and, following the ejusdem generis maxim, the word “retail” modifies both “sales” and “rentals.” 

But then the Environmental Division broadly interpreted “retail rentals” as “activities that involve renting directly to a customer, as opposed to wholesale or industrial rentals.”  In doing so, the Environmental Division emphasized the distinction between retail and wholesale and downplayed the bylaws’ language defining “retail” “a shop or store for the sale of goods, commodities, products or services.”  And even if there must be a shop for there to be retail, the Environmental Division found that self-storage facilities are shops, because “a shop or store is a business or commercial enterprise.”

The SCOV disagrees and reverses, reasoning in today’s case that without merchandise and customer-salesperson interaction, the self-storage facility is neither a store nor a shop.  Moreover, the trial court’s broad interpretation of “retail sales/rentals” would swallow the list of specifically allowed commercial uses in the Village Commercial district.  Nor are the proposed mini-warehouses compatible with the district’s purpose, which is to provide a mixed residential and commercial area that retains a residential character.

The SCOV rejects Tyler’s argument that the zoning regulations are ambiguous and must be resolved in favor of the landowner.  The regulations are clear: the Bylaws’ drafters intended “retail sales/rentals” to include only residential and small-scale commercial establishments trading in services or in goods, for sale and for rent.

Tyler’s final argument relates to the bylaws’ reference to “any readily available dictionary” for aid in interpreting terms.  Anyone can create or edit an online dictionary, says Tyler, and modify definitions as they choose.  Because a word can mean whatever one wants it to mean, the entire bylaw must be standardless, unconstitutionally vague, and unenforceable.  But the SCOV is unmoved by the threat of rogue definitions, especially as none are in evidence here.